Are you familiar with Lillian Mountweazel, the American photographer who was killed in an explosion while working for Combustibles magazine? Did you know that TV detective Columbo’s first name was Philip? Where in Ohio is the town of Goblu?
If you did not know any of these, no problem. They are fake facts. But they were created for a specific reason and it might be something you can apply to protect your business information.
The fake facts are known as copyright traps. They are small pieces of false information that take advantage of how copyright works and help identify those who are stealing it.
You might already have a sense of what copyright covers. Things like books, movies, photographs and even computer software gain protection through our Copyright Act. An interesting and key feature of the law is that the protected work does not have to be “artistic”. Even humdrum collections such as directories or arrangements of data can potentially be protected just the same as celebrated novels or plays.
The word “copy” is also important. Creating something independently of a protected work is OK as long as there was no actual copying. Granted, it is very unlikely that someone would come up with an identical script for Star Wars: The Force Awakens without seeing the original film. If you subscribe to the “infinite number of monkeys typing Shakespeare” notion it is theoretically possible. This means it is important for the original copyright owner to prove there was copying, or at least that it likely happened.
This can be surprisingly difficult to show. For example, popular music is relatively simple compared to a 300,000 word novel. There are only so many notes, after all, and even fewer arrangements of those notes which are pleasing to the ear. So it is not uncommon for new pop songs to be very similar to existing music either accidentally or intentionally.
Without proof of copying that similarity might not be actionable. So courts have developed doctrines such as “subconscious copying”. In other words, they accept there is no direct evidence of copying but they recognize the earlier work was so popular that the later artist must have heard it and unconsciously copied it.
Implied copying can be tough to prove. What if there was a way you could improve your odds of demonstrating there was copying? Copyright traps are one tool.
Copyright traps involve seeding a work with minor errors. These mistakes will not affect the normal use of the piece. Let’s say an encyclopedia includes some entries which are entirely fictional. Because there is no basis in fact for them, other than the fake entry, any appearance in a later work is strong evidence of copying.
The Mountweazel biography was an example of just this. The New Columbia Encyclopedia created an entry for a fictional photographer to trap potential copiers. Mapmakers have also used this technique for centuries. The town of Agloe, New York existed only on a map (it was later incorporated as a municipality when someone built a store there, but that came after the fact).
If you use music services which display lyrics along with the songs you have undoubtedly seen copyright traps. Many online lyrics have errors in them. Sometimes these are only due to the grammar and spelling shortcomings of the transcribers. In many cases, however, the errors are intentional. By using homonyms or punctuation errors which do not affect singing-along they can provide evidence of copying if the same errors occur elsewhere.
Copyright traps are not infallible. The makers of the Trivial Pursuit game were sued when they included an answer declaring that Columbo’s first name was Philip. In fact the detective never had a first name during the television series. An earlier trivia book had included the fake information as a trap and they sued Trivial Pursuit over the copying. They lost, however, most likely because it was the only example of copying they could prove. Trivial Pursuit’s defence that it was “research, not copying” carried the day. If the game had included more errors from the same source it might have been different.
If your business uses big chunks of data or information that you want to protect against copying, traps are something to consider. You cannot use them if the information has to be 100% correct, obviously. And you need to keep the existence of the trap tightly restricted. Many infringements result from departed or disgruntled employees and so they should not know of the traps being laid. But for things like directories or large lists of data that may contain errors without compromising their usefulness they are valuable. I would wager that virtually any phonebook in the world has numerous fake entries included for this purpose.
Copyright is a rich field and copyright traps are just a small element. But think about them the next time you find a mistake somewhere. The writer might have made an error but she just might be clever.